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Noncombatant Immunity and War-Profiteering

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Noncombatant Immunity and War-Profiteering In Oxford Handbook of Ethics of War / Published 2017 / doi:10.1093/oxfordhb/9780199943418.001.0001 Noncombatant Immunity and War-Profiteering Saba Bazargan Department of Philosophy UC San Diego Abstract The principle of noncombatant immunity prohibits warring parties from intentionally targeting noncombatants. I explicate the moral version of this view and its criticisms by reductive individualists; they argue that certain civilians on the unjust side are morally liable to be lethally targeted to forestall substantial contributions to that war. I then argue that reductivists are mistaken in thinking that causally contributing to an unjust war is a necessary condition for moral liability. Certain noncontributing civilians—notably, war-profiteers— can be morally liable to be lethally targeted. Thus, the principle of noncombatant immunity is mistaken as a moral (though not necessarily as a legal) doctrine, not just because some civilians contribute substantially, but because some unjustly enriched civilians culpably fail to discharge their restitutionary duties to those whose victimization made the unjust enrichment possible. Consequently, the moral criterion for lethal liability in war is even broader than reductive individualists have argued. 1 In Oxford Handbook of Ethics of War / Published 2017 / doi:10.1093/oxfordhb/9780199943418.001.0001 1. Background 1.1. Noncombatant Immunity and the Combatant’s Privilege in International Law In Article 155 of what came to be known as the ‘Lieber Code’, written in 1866, Francis Lieber wrote ‘[a]ll enemies in regular war are divided into two general classes—that is to say, into combatants and noncombatants’. As a legal matter, this distinction does not map perfectly onto the distinction between members and nonmembers of an armed force. For example, armed forces typically include medics and religious personnel, yet they do not qualify as combatants. Likewise, the distinction between combatants and noncombatants does not map perfectly onto the distinction between those who take up arms in a war and those who do not. For example, unlawful combatants are sometimes characterized as ‘civilians who take up arms without being authorized to do so by international law’. On this view, ‘just as guerrillas and militias are a subset of “combatant”, unlawful combatants are a subset of “civilian”’. In international law, bearing the status of ‘lawful combatant’ (from here on, I refer to them simply as ‘combatants’) comes with considerable privileges. According to Article 43.2 of Additional Protocol I to the Geneva Convention, combatants ‘have the right to participate directly in hostilities’. This means that it is legally permissible for them to engage in hostilities, and it is legally permissible to target them, provided that they have not surrendered, been captured, been injured, or shipwrecked. This has come to be known as the ‘combatant’s privilege’. International and common law prohibits warring parties from intentionally targeting noncombatants. Civilians will almost always qualify as noncombatants. (Exceptions include cases in which a military leader is also the head of state.) But what is a civilian? Article 50.1 of Additional Protocol I defines civilians negatively. It states that any person who is not a member of (1) the armed forces of a party to the conflict; (2) other volunteer corps, including organized resistance movements; (3) regular armed forces who profess allegiance to a government not recognized by the detaining power; or (4) a levée en mass, is a civilian. Under Additional Protocol I, ‘making the civilian population or individual civilians the object of attack’ constitutes a grave breach—a war crime of such seriousness as to entitle any state to exercise jurisdiction over any perpetrator. This legal 2 In Oxford Handbook of Ethics of War / Published 2017 / doi:10.1093/oxfordhb/9780199943418.001.0001 doctrine forbidding the targeting of civilians is the principle noncombatant immunity. Killing civilians collaterally (i.e., as an unintended but foreseen side effect of targeting a military (or dual-use) installation) is acceptable if the civilian casualties are not disproportionate to the anticipated military advantage that the attack affords. In international law, the legal permission to target combatants is based on their status, rather than on their conduct, in that it is not whether she poses a threat that makes a combatant a permissible target but rather the very fact that she qualifies as a combatant (although if a civilian participates directly in hostilities she eo ipso qualifies as a combatant). Many combatants—such as cooks, administrative personnel, grave-registration teams, musicians, lawyers, and the like—contribute to the war effort in ways that do not pose threats to anyone. Yet since they qualify as combatants, they ‘may be attacked at any time until they surrender or are otherwise hors de combat, and not only when actually threatening the enemy’. This means that a combatant remains a combatant even when she is not actually fighting. A soldier bivouacked and sleeping retains her status as a combatant, which means she is a legitimate target. As with the combatant’s privilege, the basis of the principle of the noncombatant immunity lies not in the individual’s conduct. What makes noncombatants illegitimate targets of attack is not the fact that they generally do not contribute substantially to the war being fought; influential journalists, lobbyists, and politicians advocating for the war, as well as scientists and engineers working on technologies likely to be used in weapons substantially furthering the war effort, are (for example) not legally targetable in spite of their contributory conduct. 1.2. The Orthodox and Revisionist Views So far, I have described, if only roughly, the legal versions of the combatant’s privilege and the principle of noncombatant immunity. Many assume that the morality of war parallels international law, at least with respect to laws articulating the legal permission to target combatants and the legal prohibition against targeting not noncombatants. I call this assumption the ‘orthodox view’. 3 In Oxford Handbook of Ethics of War / Published 2017 / doi:10.1093/oxfordhb/9780199943418.001.0001 Among those who defend the orthodox view, the most influential is Michael Walzer. In his book Just and Unjust Wars, he argued that civilians cannot be permissibly targeted since they are materially innocent—which is to say that they are harmless. The presumption is that it is morally wrong to target materially innocent people but permissible to target those who are not materially innocent. Walzer argues that no active-duty combatants during wartime are materially non-innocent, since they are all ‘currently engaged in the business of war’.1 Even those whose actual contribution to the war is small or nonexistent are not materially innocent; by virtue of their status as combatants, they have made themselves dangerous. Accordingly, all combatants are morally permissible targets of attack by other combatants. Although civilian journalists, lobbyists, politicians, scientists, and engineers might individually contribute substantially to a war, they are not themselves dangerous men or women; moreover, their contributions to the war do not fall under the aegis of a state’s (or substate actor’s) attempt to project violent force. This argument in favour of the orthodox view has been subjected to withering criticism. Jeff McMahan is the most prolific of these critics. He has argued that material non-innocence is neither a necessary nor a sufficient condition for losing one’s right not to be killed. Those who pose morally justified threats do not thereby lose their right not to be killed, no more than the victim of a culpable aggressor attempting murder loses her right not to be attacked once she engages in necessary and proportionate self-defence against the culpable aggressor. Correspondingly, combatants fighting in accordance with the rules of war in furtherance of morally just aims cannot be permissibly targeted, as a matter of morality. Although such combatants are not materially innocent, they are nonetheless morally innocent: they have done nothing to lose their right not to be killed. And it is an individual’s moral innocence, rather than her material innocence that (partly) determines whether she is liable to be killed. Combatants acting in furtherance of a war’s unjust aims are, on the other hand, morally liable to be killed: they have forfeited their right not to be 1 Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 3rd ed. (New York City: Basic Books, 2000), 43. 4 In Oxford Handbook of Ethics of War / Published 2017 / doi:10.1093/oxfordhb/9780199943418.001.0001 killed, so killing does not wrong them, provided that doing so is necessary to achieve a good of sufficient importance. Combatants participating in furtherance of an unjust aim are morally liable to be killed because such a combatant (provided she is a full-fledged agent—e.g., she is not a child soldier) is responsible for her contribution to an end which (by hypothesis) violates the rights of others. Even if such a combatant limits her targets to military installations and personnel, she acts impermissibly because those who are only defending against an unjust aim retain their right not to be harmed. So the orthodox view is mistaken in its claim that all combatants are morally entitled to kill enemy combatants. On McMahan’s ‘revisionist view’, only combatants fighting against an unjust cause (or against a just cause pursed by unjust means) are entitled to target enemy combatants.2 There have been attempts, aside from Walzer’s, to defend some version of the orthodox view.3 For instance, Thomas Hurka has argued that enlistees waive the right not to be killed. He writes: ‘by voluntarily entering military service, soldiers on both sides freely took on the status of soldiers and thereby freely accepted that they may permissibly be killed in the course of war’.4 This is because, he claims, ‘the common conception of military status’ includes the combatant’s privilege—that is, an entitlement to target enemy combatants.
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